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Former New Orleans Saints football player Will Smith was killed on April 9

Joey Jackson: Best option for the defense is to assert the shooting was justified

Joey Jackson is a criminal defense attorney and a legal analyst for CNN and HLN. The views expressed are his own.

(CNN)The tragic shooting death of former New Orleans Saints football player Will Smith on Saturday night is being thoroughly investigated by law enforcement. We don't yet know all of the relevant facts. What we do know is that before the shooting, there was a traffic incident involving Smith and Cardell Hayes, which apparently turned contentious and allegedly resulted in Hayes discharging multiple rounds of gunfire into Smith's body, killing him. Smith's wife, Racquel, was also shot, but her injuries were not life-threatening.

What else do we know, and what does that tell us about how this case might play out?

Hayes has been arrested and stands charged with second-degree murder. Prosecutors are expected to seek additional counts in connection with the injuries suffered by Smith's wife, but even in the absence of such charges, the potential ramifications for Hayes could be devastating.

Joey Jackson

In a murder prosecution, it must be shown that Hayes intentionally killed Smith, without legal justification. If prosecutors are successful, he faces an automatic life sentence, with no possibility of parole. And even if Hayes can show he acted without premeditation or intent to kill, but instead out of extreme passion, impulse and emotion, the consequences would still be severe. In that instance, the charge would be mitigated from murder to manslaughter -- which still carries a possible 40-year sentence.

The best option for the defense then is to assert that the shooting was justified and that Hayes acted in self-defense. To do so, it must be shown that Hayes: 1) reasonably perceived a deadly threat; 2) the threat was immediate; and 3) that the force Hayes used was proportionate to the threat posed. Whether such a claim can be successful depends upon the facts revealed by the investigation. Those facts, and how they are interpreted, will dictate the outcome of this case.

At least one witness alleges that someone else at the scene claimed to have a weapon as Smith was arguing with Hayes. This appears to have been corroborated as police have since found a loaded 9 mm handgun inside Smith's car, although it is unclear to whom the gun belonged. Still, the defense will seize upon this development to explain Hayes' heightened tension and the reasonableness of his actions in repeatedly firing his weapon.

Significantly, the law does not require that a person perceiving a deadly threat wait until they see the handle of a gun -- or its barrel -- before taking defensive measures. It's enough that they reasonably perceive the immediacy of the threat posed and believe they could be shot and killed. Additionally, there is no duty to retreat in Louisiana as a person perceiving danger may stand their ground.

According to a statement Hayes' attorney gave to WDSU-TV in New Orleans, a passenger in Hayes' car has said that Smith brandished a weapon before being shot and that Hayes saved his life. If true, it's a game changer for the defense as it would support the notion that Hayes' actions were justifiable. But Smith family lawyer Peter Thomson said Wednesday the former Saints star wasn't holding a firearm when he was shot to death.

What's more, the allegation that a Mercedes similar to Smith's rear-ended Hayes' car, failed to stop and thereafter attempted to flee, could help the defense. The defense could argue that Hayes, seeing the driver pull off after the accident, was given the impression that the motorist was not a law-abiding citizen and could be dangerous. Accordingly, Hayes would be more likely to be intense, cautious and exceedingly alert.

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What happens next is also critical. It is claimed that Hayes later bumped Smith's car while tailing him for purposes of securing a license plate number.In the event the facts reveal that Smith was irate, jumped out of his car and began making threats, the defense position would be buttressed.

But the defense still has some problems, one of the biggest being that Hayes appears to have fired multiple shots. Prosecutors will most assuredly argue that the force used was excessive, and that Hayes should lose the protection of self-defense as a result. Simply put, the prosecutors will ask why Hayes needed to shoot Smith so many times, and will likely urge that this be interpreted as Hayes exhibiting anger, malice and retaliation. Conversely, the defense would argue that Hayes continued to shoot not based on anger, but because Smith continually advanced toward him, thereby remaining a deadly threat. As such, Hayes would be justified in firing until the threat was terminated.

Also critical will be exactly where the shots actually hit Smith's body. The angle of the entrance wounds and the distance both men were apart at the time the gun was fired will be key -- the closer the range, the easier it is for the defense to argue that Hayes reasonably feared for his safety based upon Smith's proximity. At the same time, if the autopsy demonstrates that any of the bullets were to the back of Smith, as the arrest warrant reportedly shows, the self-defense assertion would be significantly impaired.

Initial reports are indicating that Smith was shot eight times, with seven hitting him in the back and one in the side. If this is confirmed by the autopsy report, the defense will have a difficult time explaining how shots to Smith's back were reasonable or justified. It will also negate any claims that Smith was advancing toward Hayes. The defense will certainly argue that Smith was likely reaching for a loaded gun so as to make good on his alleged threat to use it. But a jury will have to evaluate how likely it would be that Hayes was in imminent fear with Smith's back turned away. In that event, the defense will try to demonstrate that it would have taken mere seconds for Smith to gain access to his weapon and fire upon Hayes -- killing him instead.

In addition, the defense will look to strengthen its self-defense argument by pointing to Hayes' actions immediately following the shooting. He reportedly called 911 and remained at the scene. These are actions that would seem consistent with someone who reasonably believes they did nothing wrong. After all, most guilty people flee the scene of the crime. And they most certainly aren't calling the police at any point -- during or after the encounter.

The wild card in all this is toxicology. The defense will be interested to know what, if anything, Smith had in his system at the time of the occurrence. While there is no indication whatsoever at this point that Smith did have something in his system, the defense will want those results for obvious reasons.

Ultimately, the investigation will determine what happened, how it happened and why it happened. Was this a road rage incident that resulted in the senseless and unjustifiable killing of Will Smith, or a justifiable homicide resulting from Hayes reasonably believing his life to be in danger? We must follow the facts of the investigation to find the answer.